Findings Of Fact Respondent has been a registered roofing contractor at all times material hereto. His license number is RC-0035594. On or about April 26, 1985 Respondent, doing business as Pinellas Roofing Service, contracted with Bausch and Lomb to reroof their plant in Manatee County, at a contract price of $31,150. Respondent admits that at no time material hereto was he licensed to engage in contracting in Manatee County. Pinellas Roofing thereafter began, and partially performed, this job for which it was paid a total of $28,035. Petitioner alleges, and Respondent denies, that Respondent diverted funds received from this job for other purposes, and was thereafter unable to fulfill the terms of the contract with Bausch and Lomb. Petitioner did not present competent substantial evidence in support of this charge. Respondent never completed this job and took no steps to inform Bausch and Lomb that he would not complete the contract or make other arrangements for its completion. He left several thousand dollars worth of material on the roof, exposed, when he walked off this job, and this resulted in these materials being substantially destroyed. During the job, he did not take precautions to assure that the roof did not leak during heavy rainstorms. In fact, on at least three occasions, leaks caused damage to the interior of the plant and Respondent could not be reached. Therefore, Bausch and Lomb had to have another roofing contractor make emergency repairs on June 25, July 15 and September 3, 1985, at a total additional cost of $4,150. Since Respondent did not complete the contract, and left the roof unfinished, Bausch and Lomb contracted on September 17, 1985 with Bernard J. Lozon, Inc., to complete the job, and make certain additional repairs, at a cost of $24,000. In the opinion of Bernard J. Lozon, who was accepted as an expert in roofing contracting, the actual work that was done by Pinellas Roofing was satisfactory. However, Respondent's actions in walking off the job and leaving the roof unattended without completing the job is an unacceptable practice in roofing contracting, and constitutes incompetence and misconduct. Respondent failed to properly supervise this job. He relied upon his son to hire the necessary crews, pay them, handle financial aspects of the job, and assure its completion. His testimony indicates he fails to understand his own responsibility for supervising and completing the work for which he contracted, and which was performed under his license. At no time material hereto did Respondent qualify Pinellas Roofing Service with Petitioner. Respondent failed to apply for and obtain a Manatee County building permit for the roofing job in question, and also failed to request the county building department to perform inspections of the work performed. The Board of County Commissioners of Manatee County has adopted and follows the 1979 edition of the Standard for Installation of Roof Coverings, Southern Building Code, as amended in 1981. This Code requires all contractors performing work in Manatee County to be registered in Manatee County, and to obtain permits for all roof replacements and repairs in excess of $200, as well as obtain inspections of all such work to insure compliance with the Code. Respondent failed to comply with these requirements of the local building code. When Respondent submitted his proposal on April 16, 1985 for the Bausch and Lomb job, he specifically acknowledged, in writing, that "all work (is) to be done according to owner specifications sheet." (Emphasis supplied). At hearing, Respondent contended that when he submitted his proposal he never saw the project specification sheet which was thereafter attached to his contract with Bausch and Lomb and made a part thereof. Rather, he testified that his proposal referred to certain specifications that appeared on project drawings which he reviewed prior to submitting his proposal. After considering the demeanor of the witnesses and all of the evidence presented, and particularly the fact that Respondent referred to the "specifications sheet" and not "drawings" in his proposal, it is specifically found that Respondent had knowledge of, and did in fact submit his proposal based upon the "specifications sheet" which ultimately became a part of his contract. As such, he was bound thereby in the performance of work under this contract. In pertinent part, the "specifications sheet" requires that the contractor obtain all necessary permits from Manatee County, that notice be given to the owner in advance of work that will produce excessive amounts of dust or tar fumes so proper precautions could be taken, that roofing materials be stored in a manner that protects them from damage or adverse weather conditions during construction, and that the contractor provide a two year written guarantee at the conclusion of the job. Respondent failed to comply with these requirements of the specifications.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order suspending Respondent's registration for a period of ninety (90) days and imposing an administrative fine in the amount of $1,500. DONE AND ENTERED this 22nd day of April, 1987 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3698 Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Finding of Fact 8. 3,4 Adopted in Finding of Fact 2. 5,6 Adopted in Finding of Fact 3, but otherwise rejected as irrelevant and unnecessary. 7,8 Adopted in Finding of Fact 9. Adopted in Finding of Fact 6. Adopted in Findings of Fact 5, 6. Rulings on Respondent's Proposed Findings of Fact: Adopted in part in Findings of Fact 3, 5. Rejected as not based upon competent substantial evidence. Adopted in part in Finding of Fact 3. Adopted in part in Findings of Fact 2, 3. 5-7 Addressed in Findings of Fact 2, 3 and 5. 8,9 Rejected as irrelevant and unnecessary. 10. Adopted in part in Finding of Fact 5. 11,12 Adopted in part in Finding of Fact 6. Rejected as not based upon competent substantial evidence. Adopted in Findings of Fact 5, 6. Adopted in Finding of Fact 6. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32399-0750 Michael Schlesinger, Esquire 655 Ulmerton Road Building 11-A Large, Fl 33541 Fred Seely Construction Industry Licensing Board Post Office Box 2 Jacksonville, Fl 32201 Van Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32399-0750
Findings Of Fact Respondent is Richard McDougal, holder, at all times pertinent to these proceedings, of registered roofing contractor license no. RC 0050466. Petitioner is the Department of Professional Regulation, Construction Industry Licensing Board, the state agency charged with the regulation of contractors in the State of Florida. Respondent was the qualifying agent for D & R Roofing Co., at all times pertinent to these proceedings. On July 31, 1989, Arla Jackson signed and accepted Respondent's written proposal to re-roof a house belonging to Jackson, located in Washington County, Florida. Prior to engaging Respondent to re-roof the house, Jackson had only a minimal amount of leakage in a couple of corners inside the house. Under the terms of the written proposal provided by Respondent to Jackson, Respondent agreed to remove the old roof covering from the structure; install a new three ply fiberglass felt covering; install new eave metal around the roof perimeter; extend the roof a short distance at one end; and top coat a utility building on the premises. Further, Respondent agreed to haul away debris resulting from the job. Completion of the roofing project by Respondent and receipt of payment from Jackson in the amount of $3,000 occurred on August 9, 1989. $2,900 of this amount was payment to Respondent for replacing the old roof while the remainder satisfied charges by Respondent for additional work required to extend the roof. Shortly after Respondent's completion of the roof replacement, Jackson began to telephone Respondent, requesting that he come and repair holes in the roof that were leaking water as the result of rain. Respondent came to Jackson's house on at least three occasions to attempt to stop leaks in the roof. He eventually determined that he had stopped the leaks and told Jackson that, as far as he was concerned, there was no roof leakage problem. Jackson's flat roof continued to leak. Eventually, Gus Lee, an unlicensed roofing assistant to H.M. Strickland, a local licensed contractor, agreed to repair her roof and eliminate the leakage problem. Strickland's signature appears with Lee's on written documentation bearing the date of October 1, 1989, and promising a "fine roof with no leaks; and I will stand behind it." Jackson accepted the Strickland offer. Jackson paid approximately $1,925.00 to Lee for work in connection with replacing the roof and painting the interior ceiling of the house. She paid an additional $653.79 for building supplies in connection with the project. Overall, Jackson paid approximately $2,578.79 for labor and materials to re-roof her house and repair the interior ceiling damage resulting from the leakage. This amount was in addition to the amount previously paid to Respondent. On October 20, 1989, Lee, the unlicensed assistant to Strickland and the person who actually undertook the task of re-roofing Jackson's house, removed the previous roofing material placed on Jackson's house by Respondent. Lee observed no fiber glass felt covering material on Jackson's roof at the time he re-roofed the house. Lee's testimony at hearing was credible, candid and direct. Although unlicensed as a contractor, Lee's attested experience supports his testimony regarding what he observed and establishes that Respondent failed to comply with his agreement to Jackson to provide fiber glass felt during the initial roofing of the house and instead used a less expensive material. Lee's testimony, coupled with that of Jackson and Lee's son, also establishs that significant damage had occurred to the interior ceiling of Jackson's house as the result of leakage after completion of work by Respondent. After Lee completed the re-roofing of Jackson's home, inclusive of use of a six ply felt covering on the roof accompanied by pea gravel and sealant, the roof's leakage stopped.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered imposing an administrative fine of $1500 upon Respondent's license as a registered roofing contractor. DONE AND ENTERED this 25th day of November, 1991, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-4. Adopted, though not verbatim. 5.-8. Subordinate to Hearing Officer's Conclusions. 9.-11. Adopted in substance, though not verbatim. Respondent's Proposed Findings. None submitted. COPIES FURNISHED: Robert B. Jurand, Esq. Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0792 Richard McDougal Box 10277 Panama City, FL 32404 Daniel O'Brien, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, FL 32201 General Counsel Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0750
The Issue The issues in Case No. 07-4376PL are whether Respondent violated Subsections 489.129(1)(i), 489.119(2), 489.126(2)(a), and 489.129(1)(j), (m), and (o), Florida Statutes (2004),1 and, if so, what discipline should be imposed. The issues in Case No. 07-4377PL are whether Respondent violated Subsections 489.1425(1), and 489.129(1)(i) and (o), Florida Statutes, and, if so, what discipline should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of contracting pursuant to Section 20.165 and Chapters 455 and 489, Florida Statutes. Mr. Roach is, and was at all times material to this action, a certified roofing contractor in the State of Florida having been issued License No. CCC1326005. Mr. Roach's Certified Roofing Contractor License No. CCC1326005 is current and active. Mr. Roach's current addresses of record are Post Office Box 345, Orange Springs, Florida, and 22204 U.S. Highway 301, Hawthorne, Florida. At all times material to this action, Mr. Roach was a licensed qualifier for All Florida Roofing Contractors, Inc. (All Florida). There is evidence in the record sufficient to establish that Mr. Roach has been previously disciplined for a violation under Chapter 489, Florida Statutes. Notably, Mr. Roach has been previously disciplined for, among other things, violations of Subsections 489.129(1)(m) and (o), Florida Statutes. Case No. 07-4376PL Mr. Roach failed to obtain a Certificate of Authority for All Florida, as required by Subsection 489.119(2), Florida Statutes. On or about August 23, 2004, Mr. Pang contracted with Mr. Roach, to remove and replace the hurricane-damaged roof of his hotel property located at 1620 West Vine Street, Kissimmee, Florida. The contract price for the aforementioned project was $40,000.00. Mr. Pang made an initial payment of $2,250.00 on August 22, 2004, and another payment of $20,000.00 on August 23, 2004. As part of the contract, All Florida was required to pull the building permits for the project, and Mr. Roach failed to do this. Mr. Roach commenced work on the project on or about September 7, 2004. On or about late September 2004, he ceased work on the project, and the project remained unfinished. Mr. Pang paid All Florida an additional $10,000.00 on September 16, 2004. On October 1, 2004, the City of Kissimmee issued a Notice of Violation against Mr. Pang for failure to have a building permit for the work that had been performed by Mr. Roach on the roof. Mr. Roach scheduled repairs on the project, but did not return to the project. Mr. Roach did not have any inspections performed on the roof. Later, another contractor hired by Mr. Pang finished the roofing project at a cost of an additional $32,975.00. Case No. 07-4377PL On or about September 15, 2004, Ms. Perez contracted with Mr. Roach to repair roof damage to her residence at 1502 Golden Poppy Court, Orlando, Florida. The contract price for the aforementioned project was $7,268.32, of which Mr. Roach was paid $3,634.16 on September 18, 2004. The contract entered into between Ms. Perez and Mr. Roach failed to inform the homeowner of the Construction Industry Recovery Fund. On or about October 27, 2004, the Orange County Building Department issued Mr. Roach a permit for the aforementioned project (Permit No. T04018050). Mr. Roach did not have any inspections performed on the roof. On September 25, 2004, Ms. Perez paid $3,614.16 to All Florida, which was the remaining amount of the contract. Another contractor was hired by Ms Perez to correct deficient aspects of Mr. Roach's work on the roof at a cost of $900.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered whose outcome is the following: That in Case No. 07-4376PL Respondent violated Subsections 489.129(1)(i), (j), (m) and (o), Florida Statutes; Dismiss Count II of the Administrative Complaint in Case No. 07-4376PL; In Case No. 07-4376PL, imposing an administrative fine of $1,000.00 for the violation of Subsection 489.129(1)(i), Florida Statutes; imposing an administrative fine of $5,000.00 for the violation of Subsection 489.129(1)(j), Florida Statutes; imposing an administrative fine of $2,500 for the violation of Subsection 489.129(1)(o), Florida Statutes; no administrative fine is recommended for the violation of 489.129(1)(m), Florida Statutes, because the violation is included in the violations of Subsections 489.129(1)(j) and (o), Florida Statutes; That in Case No. 07-4377PL, Respondent violated Subsections 489.129(1)(i) and (o), Florida Statutes; In Case No. 07-4377PL, imposing an administrative fine of $1,000 for the violation of Subsection 489.129(1)(i), Florida Statutes; imposing an administrative fine of $2,500 for the violation of Subsection 489.129(1)(o), Florida Statutes; Requiring Respondent to make Restitution to Mr. and Mrs. Pang in the amount of $25,000; Requiring Respondent to make Restitution to Ms. Perez in the amount of $900; and Revoking Respondent's contractor license. DONE AND ENTERED this 31st day of March, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2008.
The Issue Whether Respondent's activity and conduct in the performance of a roofing contract constitutes abandonment of that contract in violation of Section 489.129(1)(k), Florida Statutes (1979), and whether Respondent willfully or deliberately violated the Volusia County Building Code, thereby contravening Section 489.129(1)(d), Florida Statutes (1979), by failing to obtain a building permit prior to commencing construction of the subject project. Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and Respondent, the Petitioner's proposed recommended order and the entire record compiled herein, I hereby make the following:
Findings Of Fact By its Administrative Complaint signed October 21, 1981, Petitioner, Florida Construction Industry Licensing Board, seeks to take disciplinary action against Respondent and against his license as a registered roofing contractor. Respondent, Leonard L. Clark, is a registered roofing contractor who holds License No. RC 0020933 which has been issued by Petitioner. Respondent does business under the entity Clark Roofing. On January 15, 1981, Respondent entered into a contract with one Mae Coogan, to reroof her residence. The contract specifically required Respondent to "replace any bad wood," and provide a ten (10) year workmanship warranty. (Petitioner's Exhibit No. 1.) Additionally, Respondent agreed to install a 1 x 2 inch strip and a brown aluminum facia at an extra cost of $200.00. (Petitioner's Exhibit No. 1 and testimony of John Coogan.) Mrs. Mae Coogan is an elderly woman and is incapacitated. Her son, John Coogan, who lives with her in her residence, advised her during the negotiations of the subject contract, and testified as a witness in the proceedings herein. Respondent and John Coogan's testimony establishes that construction on the subject project commenced on February 10, 1981, and ceased on March 28, 1981. At that time, based upon Respondent's representation that the job was complete, Mr. Coogan paid Respondent the entire $2,500.00 due under the terms of the contract. Shortly thereafter, Mr. Coogan discovered evidence of "bad" or "rotten wood." Mr. Coogan immediately apprised Respondent of this, whereupon Respondent initially told him that he would be back to the job site to take care of any problems that existed with the reroofing project. There is conflicting evidence as to whether or not there was a subsequent telephone conversation between Respondent and Mr. Coogan following a letter which Respondent found offensive. Respondent claims that there was such a conversation and that the parties became angry at each other. At that juncture, the parties were unable to resolve their differences. Efforts by the parties to resolve their differences reached a stalemate, and Respondent did not again visit the project site or otherwise inspect the claimed damaged by Mr. Coogan. Mr. Coogan, to substantiate his claim that there was in fact rotten or bad wood left exposed in the overhang, rafters and beams surrounding the roof, introduced several photographs which depicted the condition of the wood on the roof. (Petitioner's Composite Exhibit No. 3.) Respecting the fact that there was rotten wood, as claimed by Mr. Coogan, in the rafters and overhang, Respondent admitted the existence thereof. There is also a question about the possibility of rotten wood being covered by Respondent's employees and not replaced as required by the contract. The particular area in question is a portion of a flat roof which sagged in several places. Mr. Coogan claims that he had been advised that this was due to rotten wood underneath the shingles in an area in which he specifically claims to have asked Respondent to allow him to inspect the exposed-wood surface prior to the time in which it was covered with asphalt shingles. Respondent's workers covered this area of the roof without permitting Mr. Coogan the opportunity to inspect it. Mr. Coogan testified that the roof continued to sag in the identical places where it sagged prior to the reroofing. In this regard, Respondent admits that he might have agreed to allow Mr. Coogan an opportunity to inspect the exposed roof once the shingles were removed and prior to the time that he recovered (reroofed) the flat roof. Respondent further testified that this was not due to any effort on his part to conceal or otherwise hide rotten wood and, in fact, he claimed to have covered or replaced any bad or rotten wood. In this regard, Mr. Coogan noticed at least four water leaks from his roof prior to the time that Respondent reroofed his mother's house; however, he testified, on cross-examination, that he has not seen any leaks since Respondent has completed the subject project. Bob McConnell, Volusia County Building Inspector for approximately five years, inspected the roofing job completed by Respondent for Mrs. Coogan on July 28, 1981. Mr. McConnell found that the roofing job did not comply with the contract in the following regards: The 1 x 2 inch strip beneath the brown aluminum facia, called for as an extra, was not installed; There was visible rot in the sheathing; A short hip (rafter) was replaced with unsound wood; and A rafter tail had visible rot. In this regard, Mr. McConnell, while also reporting that there were soft spots in the built-up roof, could not testify with certainty that they were the result of wood rot. Respondent testified that he has tried to contact Mr. Coogan on several occasions to correct any claimed deficiency. Respondent stands, at this time, willing to correct any deficiency that exists or to correct any problem which stems from his deviation from the contract. In this regard, Respondent has offered, and no offers, to remove the shingles from the entire roof and allow for it to be inspected by Respondent or any designated roofing contractor whom Coogan or Petitioner selects. Respondent will replace any "bad" or "rotten" wood which he has been claimed to have covered. However, Respondent expects to be paid for reroofing this job in the event that in an inspection reveals that no "bad" or "rotten" wood was covered as Mr. Coogan and Petitioner claim. Inspector McConnell has known Respondent in excess of twenty-five (25) years and is unaware of any claim that Respondent has performed any unworkmanlike or "shoddy" roofing repairs. Finally, in this connection, Respondent introduced letters from three (3) area builders who attested to Respondent's excellent workmanship. (Respondent's Composite Exhibit No. 3.)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Respondent be placed on probation for a period of two (2) years and that the term of probation be suspended for a period of sixty (60) days, during which time Respondent shall be allowed an opportunity to return to the Coogan residence and replace any existing exposed "rotten" or "bad" wood which should have been replaced pursuant to the terms of the contract. In the event that the Respondent properly completes the replacement of the rotten or damaged wood on this project, following an inspection by one of Petitioner's agents, it is further RECOMMENDED: That the entire term of the probation be suspended. In the event that Respondent fails to properly complete this project, following an inspection by one of Petitioner's agents, it is further RECOMMENDED: That the entire term of probation be instituted without the necessity of further hearing. RECOMMENDED this 11th day of August, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1982.
The Issue The issues in this case are whether Respondent engaged in the unlicensed practice of contracting, and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency responsible for, inter alia, licensing and monitoring general contractors. Department headquarters are in Tallahassee, Florida. Part and parcel of the Department's duties is the sanctioning of persons who practice general contracting without a license. Respondent is an individual living in Tampa, Florida. Respondent did not appear at final hearing and has not filed any post-hearing motions concerning his failure to appear. The Administrative Complaint filed by the Department makes the following allegations: Respondent was not registered or certified to engage in the practice of contracting. Respondent, doing business as J.D.S. Roofing, contracted with Vivian Virgil to perform certain roofing work, specifically, to remove and replace shingles and related work to reconstruct the roof on Virgil's home. A contract between the parties dated April 21, 2006, was signed by Virgil and Respondent (or his authorized representative). Virgil made two payments to Respondent in the amounts of $2,500.00 (via check number 1037) and $1,564.46 (via check number 1040). She also made a payment of $2,860.54 to The Home Depot to pay for materials ordered by Respondent for Virgil's roofing repairs. Respondent then made the contracted-for repairs and replacement of Virgil's roof pursuant to the contract.2 Virgil, however, was not pleased with the quality of the work. She is unable to get a warranty on the roof because Respondent's work was inferior. Virgil must have another contractor re-do the roof in order to get a warranty. Neither Respondent nor his company, J.D.S. Roofing, is or has ever been licensed by the State of Florida as a contractor. However, Respondent held himself out as a general contractor in his dealings with Virgil.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation finding that Respondent, James Delaughter, is guilty of the unlicensed practice of contracting and imposing a fine of $5,000.00. DONE AND ENTERED this 8th day of April, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 2008.
Findings Of Fact Bruce A. Williams, Respondent, is the holder of a registered roofing contractor's license from the Florida Construction Industry Licensing Board. The license number is CC C020246. Respondent is vice president of Dean Roofing and Sheet Metal, Inc. (The Dean Company), Post Office Box 2077, Clearwater, Florida. By proposal submitted March 31, 1983, and accepted by Marshall Kent on April 1, 1983, the Dean Company contracted to remove the existing roof on Kent's residence and replace same at a price of $8,600 (Exhibit 1). The work was supposed to start April 11, 1983 and be completed on April 15, 1983. This contract was signed on behalf of Dean Company by Bruce A. Williams, Respondent, as vice president of Dean Company and by Marshall Kent. Kent is an experienced residential contractor who acknowledged having built approximately 2,000 homes. While removing the existing roof, Dean Company workers found the 30-year old house had three plys of roofing applied since the house was constructed and to remove this thick roof heavier equipment that normal was required. Kent's residence had a tectum roof decking which consists of a metallic-fiber substance which has a long life and serves as inside ceiling and outside roof decking over which built up roofing is applied. While removing the existing roof the tectum deck was fractured and Kent ordered Dean Company workers off the Job. By letter dated April 18, 1983 (Exhibit 6) Respondent advised Kent that the cost of replacing the damaged tectum would be borne by the Dean Company and it was necessary to get on with the project before additional damage was done through the areas of roof exposed by removal of the original roof. Upon seeing Exhibit 6, K. A. Williams, president of Dean Company and father of the Respondent, concluded that the problems may have been exacerbated by a personality conflict between Respondent and Kent, and turned the job over to R. L. MacMurry, another vice president at Dean Company, who had considerable experience in the roofing business. By letter dated Apri1 19, 1983 (Exhibit 7) MacMurry, on behalf of Dean Company, advised Kent that since he questioned their ability to properly install the new decking to replace the damaged decking they would employ the services of a general contractor to replace the damaged tectum, and if the replaced tectum did not match the original tectum they would have the entire ceiling painted. Kent denies receiving this letter. Kent refused these offers and by letter dated April 21, 1983 "Exhibit 8) R. A. Williams pointed out that Kent's refusal to allow Dean Company to immediately complete the roofing work in progress could lead to serious damage from water intrusion and that such damage would be Kent's responsibility. On Friday, April 29, 1983 a meeting was held between the Kents, Williams and MacMurry at which Dean Company -agreed to immediately recommence roof work, bring in a general contractor to replace the damaged decking and complete the contract. Kent demurred until the agreement was reduced to writing, preferably by an attorney. Kent prepared an endorsement on Exhibit 9 in which responsibility for the repairs was, in Kent's opinion, shifted to the general contractor. This endorsement was accepted by the parties on May 3, 1983. The residence was reroofed in accordance with the latter agreement and Kent never advised Dean Company that all work was not satisfactorily completed. Dean Company provided Kent with a five (5) year Roofing Guarantee (Exhibit 11) dated May 10, 1983, which was forwarded to Kent by letter dated May 11, 1983 (Exhibit 10) with an invoice for the total owed on the job (Exhibit 14). Kent responded with letter dated May 17, 1983 (Exhibit 23) contending he was not whole, the job was not. complete and the guarantee was a joke. Kent considered the Roofing Guarantee suspect because it was a form used by the Midwest Roofing Contractor's Association. Shortly after this time Kent was hospitalized for psychiatric treatment and upon his release from the hospital in August 1983 he found that a mechanic's lien had been placed on his property by Dean Company. He also found what he believed to be leaks into the ceiling of a bedroom but made no complaint to Dean Company. Kent then hired a roofer, Chuck Goldsmith, to inspect the work done on his roof. When Goldsmith tried to negotiate the dispute between Kent and Dean Company, Kent fired him. Kent then hired William A. Cox, an architect and roofing consultant, to inspect the roof and advise what needed to be done. Cox inspected the roof in late October 1983 and submitted a list of discrepancies he recommended for correction. In one place he was able to insert a knife blade between the Fla. roof and the vertical wall against which the roof abuts which indicated no sheathing had been installed. Expert witnesses opined that without metal sheathing the roof would have leaked within six to eighteen months and the roof could never have been intact for the 30 years the house had been built without sheathing at such a joint. The vertical side of the original flashing would have been under the stucco at this point and there was no evidence that the stucco was disturbed when the new roof was first installed by Dean Company. New flashing was subsequently installed by Dean Company at this juncture but no one testified respecting the flashing observed or not present when this new roof was removed to insert the new flashing. Failure to insert flashing at such a juncture of horizontal roof and vertical wall would constitute a violation of the Standard Building Code. The report Cox gave to Kent was not made known to Dean until January 1984. By letter dated August 21, 1984 (Exhibit 13) Clark and Logan advised K. A. Williams that they would do all of the work listed in the Cox report on the Kent residence. This work was done in August 1984. Kent contends the leak continued in his bedroom after the work was completed but he never relayed this information to either Clark and Logan or to Dean Company. He has yet to pay one penny for the work done on his roof. Kent considered Clark and Logan to be the prime contractor on the job at the time the August 1984 work was done. Kent further testified that following that work Clark and Logan abandoned the job and he also filed a complaint against that general contractor. Since April 1983 following the damage to the tectum decking, Respondent, Bruce Williams, has had no responsibility for, and did no supervision of, the reroofing of Kent's residence. When the roof was inspected by the Pinellas County Building Inspector he found the workmanship done on this job only slightly below standard. At one place-on the roof Cox found the lower section of flashing overlapped the upper section of flashing which would have permitted water to enter under the flashing. This was a mistake but not an uncommon one for roofers to make. When pointed out to Dean Company the situation was promptly corrected.
The Issue The issue in this case is whether the Respondent violated Sections 489.129(1)(j)(m), 489.119, and 489.105(4), Florida Statutes, by failing to reasonably honor his guarantee and, if so, what administrative penalty, if any, should be imposed.
Findings Of Fact At all times relevant to the issues in this case, the Respondent was licensed as a registered roofing contractor by the Construction Industry Licensing Board and held license number RC-0043386. In March of 1983, the Respondent entered into a contract in his capacity as a registered roofing contractor to reroof a house owned by Willard S. Seidel located at 150 N.E. 102nd Street, North Miami Beach, Florida. The work under the contract was to be done by Bradley Roofing Company, a company for which the Respondent was the qualifying agent. The contract contemplated the reroofing of the entire house, including the main roof, the Florida room roof, and the garage roof. The contract price was $4,240.00, which was paid in full. The contract included a ten-year guarantee provision reading as follows: "COMPANY'S GUARANTEE: The Company guarantees its material and workmanship for ten (10) years. It will replace faulty material or faulty workmanship within the period of the guarantee free of charge." The work on the Seidel residence was performed during the latter part of March and the first part of April of 1983. Within a month or so, the garage roof began to leak. The Respondent was promptly advised of the leak. Over a period of several months, the Respondent or employees of his company made several unsuccessful efforts to fix the leaks in the garage roof. Finally, in October of 1983, the Respondent was successful in stopping the leaks in the garage roof. In September of 1987, the roof over the main portion of the house began to leak in the living room area, and the roof over the Florida room began to leak. These leaks were promptly reported to the Respondent. From September of 1987 through December of 1988, the Respondent or employees of his company made several unsuccessful efforts to fix the leaks in the living room and the Florida room. These efforts included replacing the entire roof on the Florida room. The construction of the roof on the Florida room was such that after the Respondent had finished all of his efforts at repairing that portion of the roof, the roof would still hold approximately three-fourths of an inch of water after a rain. The type of roof over the Florida room was not one intended to hold water. Good roofing practice required that the slope of that portion of the roof be modified or that a different type of roof covering material be used. All of the Respondent's repair efforts from September of 1987 through December of 1988 were unsuccessful. After all of those efforts, the roof over the main portion of the house still leaked in the vicinity of the living room and the roof over the Florida room still leaked. A competent roofing contractor would have been able to repair the roof so that it did not leak. The Respondent's inability to repair the leaks after numerous efforts and keep the roof free from leaks during the guarantee period constitutes incompetence. In April of 1989, the owner of the house contracted with another roof contractor to repair the leaks in the roof. The second contractor was able to successfully repair the leaks in the roof on the main part of the house as well as the leaks in the roof over the Florida room. The cost of these successful repairs totaled $1,680.00 The Respondent has been previously disciplined by the Construction Industry Licensing Board for violations of Section 489.129(1), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board issue a final order in this case to the following effect: Dismissing the charge that the Respondent has violated Section 489.129(1)(j), Florida Statutes. Concluding that the Respondent is guilty of having violated Section 489.129(1)(m), Florida Statutes, by reason of incompetency in the practice of contracting. Imposing an administrative penalty consisting of a fine in the amount of $2,000.00, and a suspension of the Respondent's license for a period of one year. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of July 1989. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5216 The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings proposed by Petitioner: Paragraphs 1 through 14: Accepted in substance with some details omitted as unnecessary. Paragraph 15: Rejected as irrelevant because the Respondent is not charged with any building code violations. Paragraphs 15 through 19: Accepted in substance with some details omitted as unnecessary. Paragraphs 20 and 21: Rejected as subordinate and unnecessary details. Paragraph 22: Accepted in substance. Paragraph 23: First sentence rejected as irrelevant to issues in this case. Remainder of this paragraph accepted in substance. Paragraphs 24 through 26: Accepted in substance. Paragraph 27: Rejected as irrelevant because Respondent was not charged with failure to remove rotten wood. Paragraph 28: Rejected because not supported by clear and convincing evidence. Paragraph 29: Accepted. Findings proposed by Respondent: (None) COPIES FURNISHED: Carolyn Kellman, Esquire William S. Berk, Esquire Adorno, Zeder, Allen, Yoss, Bloomberg & Goodkind, P.A. 3225 Aviation Avenue Suite 400 Miami, Florida 33133 Robert Bradley 5810 N.W. 30th Avenue Miami, Florida 33142 Fred Seely, Executive Director Construction Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether Respondent committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty to prosecute administrative complaints pursuant to Chapters 455 and 489, Florida Statutes. At all times pertinent to this proceeding, Respondent was licensed as a certified building contractor and a certified roofing contractor, having been issued license numbers CC C027427 and CB C023123. At all times pertinent to this proceeding, MCI was a corporation engaged in roofing contracting, and Respondent was its qualifying agent. A re-roofing job by MCI on the shared roof of two townhouses located at 105 and 106 Woodland Road, the Village of Palm Springs, Florida (the Village), is at issue in this proceeding. These two townhouses are part of a building consisting of four townhouses. All four townhouses have a shared roof. Essentially, the work by MCI was to re-roof half of the entire roof. At the times material to this proceeding Lawrence Gauer owned the townhouse at 105 Woodland Road (Gauer townhouse) and RCM owned the townhouse at 106 Woodland Road (RCM townhouse). Both townhouses are within the permitting jurisdiction of the Village. Mr. Malt, Respondent's brother, owns RCM. Mr. Malt is a certified general contractor, developer, and real estate broker. Mr. Malt has extensive experience building townhouses, having built over 4,000 dwelling units, including the townhouses where the work at issue in this proceeding occurred. Mr. Malt also owns the company that manufactured the engineered pre-stressed concrete structural members that served as the foundation for the roof at issue in this proceeding. Mr. Malt is not a licensed roofing contractor, and his general contractor’s license does not authorize him to perform roofing work. In the fall of 1998, Mr. Malt determined that the RCM townhouse should be re-roofed. Mr. Malt contacted the owners of the other three townhouses to determine whether they wanted to re-roof their portions of the shared roof. Mr. Gauer decided to have his part of the shared roof re-roofed with Mr. Malt, but the owners of the other two townhouses declined. At all times material to this proceeding, Respondent authorized Mr. Malt to act as an agent for MCI. On January 7, 1999, MCI contracted with Mr. Gauer and with RCM to perform the work at issue in this proceeding. Mr. Gauer signed the contract in his capacity as owner of his townhouse. Mr. Malt signed the contract on behalf of RCM as owner of its townhouse. Mr. Malt also signed the contract on behalf of MCI in his capacity as its agent. The total amount of the contract was $5,000, with each owner (Mr. Gauer and RCM) being responsible for payment of $2,500. The contract required each owner to pay $1,250 upon execution of the contract with the balance due within five days ". . . of completion (inspection by the Village . . .)". On or about January 7, 1999, Mr. Gauer paid $1,850 to MCI. There was no explanation as to why Mr. Gauer paid more than the contract required on that date. Respondent's license number did not appear in the contract, and the contract did not contain a written statement explaining the rights of consumers under the Construction Industries Recovery Fund. On January 13, 1999, Mr. Malt, as agent for MCI, applied to the Village for the requisite building permits for the subject work. On January 13, 1999, the Village issued two separate permits, one for each townhouse, authorizing the re- roofing work contemplated by the subject contract. Each permit reflected that the valuation of the work was $2,500. Consistent with the applicable building code, the Village's building department issued a notice with each permit that because the roof was flat, the roof had to provide positive drainage to prevent the ponding of water or the roof had to be constructed of specific water retaining material. Mr. Malt, as agent for MCI, hired the crew that performed the roofing work at issue in this proceeding. At all times material to this proceeding, Mr. Malt supervised the roofing crew that worked on the two townhouses. Prior to beginning work on the roof, Mr. Malt checked weather forecasts for the area. On January 13, 1999, the roofing crew removed the existing roofing material from the roof. At the end of the workday, the crew covered the exposed roof with plastic sheeting commonly referred to as Visqueen. For a flat roof, the accepted standard in the roofing industry is to remove only as much roofing material as can be replaced with finished roofing material the same day. A plastic sheeting such as Visqueen is inadequate to protect an exposed flat roof from a heavy rainfall. The failure to adequately protect the exposed roof on January 13, 1999, constituted negligence. On the night of January 13, 1999, an unexpected heavy rainfall event occurred. As a consequence of the rainfall and the inadequately protected roof, substantial amounts of rainfall intruded in both townhouses, causing extensive damage. The work crew spent most of January 14, 1999, cleaning up following the rain event the previous day. As of Friday, January 15, 1999, the roof was still exposed. On that date, MCI installed a base coat of hot asphalt and insulation, which was inadequate to waterproof the flat roof. At the end of the workday, the roofing crew covered the roof with Visqueen and left for the weekend. On January 16, 1999, additional heavy rains occurred. Again, as a consequence of the rainfall and the inadequately protected roof, substantial amounts of rainfall intruded in both townhouses, causing additional damage to both townhouses. The failure to adequately protect the exposed roof constituted negligence. Mr. Gauer's homeowner's insurance company paid his policy limits for emergency services and repairs to his townhouse. The repairs were completed on or about February 19, 1999. Mr. Gauer subrogated his rights against MCI to his insurance company. There was a civil action pending by the insurance company against MCI at the time of the final hearing based on the subrogation rights. Mr. Gauer's homeowner's insurance did not cover damages to his or Mr. Poitivent's personal property. The value of those losses was not established. During the week beginning January 18, 1999, MCI installed new roofing material on the roof. In doing so, the roofing crew covered the clothes dryer vent for each townhouse with roofing material. As a result, Mr. Gauer's clothes dryer did not vent properly, and he paid an independent contractor $250.00 to inspect and clean out the dryer vent. MCI promptly corrected the deficient work after Mr. Gauer told Mr. Malt that his dryer vent had been covered during the re-roofing. The accepted standard in the roofing industry is that roof vents are not to be covered over without some specific instruction to do so. MCI's failure to adhere to that standard constituted negligence. MCI asserted that it completed the roofing work in 1999. At the times pertinent to this proceeding, Craig Johns was a building inspector for the Village. Mr. Johns inspected the subject roof on the following dates in 1999: June 15, July 15, August 12, and August 30. Following each inspection, Mr. Johns found that the roof did not pass inspection. Among other deficiencies, Mr. Johns found that the roof did not provide positive drainage, which was required for a flat roof covered in asphalt. 2/ As of the final hearing, MCI had not obtained a passing final inspection from the Village's building department. Mr. Malt established that Respondent had just cause to believe that MCI had completed all work on the project in 1999. Consequently, Respondent is not guilty of abandoning the work within the meaning of Section 489.129(1)(k), Florida Statutes (1997). As of June 15, 2001, Petitioner's costs of investigation and prosecution in this case, excluding costs associated with attorney's time, totaled $794.23. 3/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the violations alleged in Counts I, II, V, and VI of the Administrative Complaint. The recommended penalty for the violation alleged in Count I is an administrative fine in the amount of $100. The recommended penalty for the violation alleged in Count II is an administrative fine in the amount of $100. The recommended penalty for the violation alleged in Count V is an administrative fine in the amount of $500. The recommended penalty for the violation alleged in Count VI is an administrative fine in the amount of $500. It is further recommended that the final order require Respondent to pay Mr. Gauer restitution in the amount of $250. It is further recommended that the final order require Respondent to pay investigative costs in the amount of $794.23. DONE AND ENTERED this 5th day of November, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of November, 2001.
The Issue The issues in this case are whether Respondent, Linda Ratliff, d/b/a Suncoast Roofing of Polk County, Inc. (Respondent), violated provisions of Chapter 489, Florida Statutes (2009),1 as alleged in the Administrative Complaint dated June 21, 2010, issued by Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Petitioner or Department), and, if so, what penalties should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of contracting, pursuant to Section 20.165, Florida Statutes, and Chapters 455 and 489, Florida Statutes. Respondent is, and has been at all times material to the allegations of this case, a certified roofing contractor, license number CCC 058307. Respondent’s license is currently in “probation, active” status. Respondent’s address of record is 2023 Shoreland Drive, Auburndale, Florida 33823. Linda Ratliff, individually, is the licensed, primary qualifying agent for Suncoast Roofing of Polk County, Inc. (Suncoast). J. Ratliff works in the family business, and has done so for approximately 17 years. As the primary qualifying agent for Suncoast, Linda Ratliff is responsible for the supervision of all operations of the business. Such operations include, but are not limited to, field work at contract sites, financial responsibility for the entity, and all contractual obligations of the company. In this case, the only contractual obligation in dispute is in relation to a contract between Respondent and Ray and Loretta Noble. On or about February 25, 2009, Respondent entered into a contract (the contract) with Ray and Loretta Noble. The contract described the work to be performed. The address for the property was identified as 1021 and 1023 Brunell Road, Lakeland, Florida. The Noble property was a duplex, and the contract required the owner to pay $6,800.00 “when finish with work.” The terms of the contract specified that Respondent would: remove the old, flat roofing; replace felt with glass base; fix any rotten wood; recover the roof with 1.5 Iso Board installation and Rubber Bitumen; replace roof stacks with new stacks; obtain the permit; torch down Bitumen; install 12-year manufacturer warranty on shingles, 12 years on Rubber Bitumen, 15 TPO; provide a five-year warranty on labor; clean-up and haul off all trash from roof; roll yard with magnetic roller; provide professional job supervision, and re-shingle the front of the apartment. Respondent applied for and received a building permit for the Noble contract on or about February 27, 2009. Thereafter, Respondent proceeded with work on the property. On or about March 3, 2009, Respondent requested payment from Mr. Noble regarding completion of the roof. J. Ratliff, acting in his capacity as an agent for Respondent, represented to Mr. Noble that the job was finished and that payment was due and owing. Based upon Mr. Ratliff’s representations, Mr. Noble believed that the roof had passed inspection, and that the roof had been installed as presented in the contract. Accordingly, Mr. Noble paid Respondent the full contract price for the job. Unbeknownst to Mr. Noble, the new roof did not pass inspection. In fact, the roof never passed inspection. Initially, Respondent failed to perform minor work to ensure that the roof was water tight. For each deficiency identified by a city inspector, Respondent returned to the job site and made minor repairs. Ultimately, the job could not pass inspection due to the placement of air-conditioning units on the roof of the structure. Respondent did not remove the units prior to installing the new roofing system. In order to assure a water- tight roof, the units would have needed to be removed so that roofing materials could be place underneath. Afterward, the units would have to be re-positioned on the roof. Instead, Respondent sealed around the existing air conditioners as best as could be done, but Respondent’s work did not prevent water from intruding below. After a series of failed inspections, on or about July 7, 2009, city officials, Respondent, and the property owner met at the job site to determine what could be done to cure the roof problems. City officials advised the property owner that the air-conditioning units would need to be moved to allow the installation of roofing material and re-set afterwards. Mr. Noble did not want to incur the cost of the additional project. Respondent also refused to correct the job so that it could pass inspection. Respondent advised Mr. Noble that it would cost an additional $800.00 to have a licensed person remove the units and re-set them. Respondent and Mr. Noble reached an impasse and neither would compromise. Respondent never returned to the job site, and did not obtain an acceptable inspection for the work performed. Eventually, Mr. Noble had another company re-roof the structure and incurred an additional $7,400.00 in roofing expenses. Respondent did not refund any of Mr. Noble’s money, nor did Respondent honor the terms of the contract. The roof failed not fewer than seven inspections and several of the failures were unrelated to the issue associated with the air- conditioning units. The investigative costs for this case totaled $325.90. Respondent has prior disciplinary action against the license, as noted in Petitioner’s Exhibit C. Respondent’s claim that an additional licensee would have been required to remove the air-conditioning units and re- set them, is not mitigation of the circumstances of this case. Respondent had the option of not undertaking a project that required the removal of the air-conditioning units, in order to assure a water-tight result. As the licensed party, Respondent knew or should have known how to install a water-tight roofing system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of violating the provisions of law found in Counts I, II, III, IV, VI, and VII. Based upon the guidelines, past disciplinary actions against the Respondent, and a totality of the circumstances, it is further recommended that an administrative fine in the amount of $5000.00 be imposed for the violations noted above. Also, it is recommended that Respondent’s license be suspended for six months. Finally, it is recommended that Respondent be required to reimburse Petitioner for the investigative and other costs incurred in this case to the full extent allowed by law. DONE AND ENTERED this 30th day of December, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 2010.
